Cyber Law Spurns At Traditional Concept Of 'Territoriality': Karnataka HC Upholds Foreign Entity's Right To Invoke Writ Jurisdiction In India

In its 109-page judgment dismissing US-based microblogging platform Twitter's plea against account blocking orders issued by the Central government, the Karnataka High Court today upheld the right of foreign entities to invoke writ jurisdiction of Indian Courts.

A single bench of Justice Krishna S. Dixit rejected Centre's objection to maintainability of Twitter's challenge and recognized that in cyber space, geographical boundaries have started to fade out. It remarked,

"It hardly needs to be stated that many civilized jurisdictions across the globe allow foreign nationals & foreign entities to vindicate statutory rights in the domestic courts, even against the government & its authorities...The realm of Cyber Law spurns at traditional concept of territoriality and repels the idea of geographical boundaries. Globe is becoming small."

Twitter's counsel Manu Kulkarni had argued that Article III of the U.S. Constitution recognizes the right of foreign citizens/entities to sue and their liability for being sued. He had pointed that Section 83 of Indian CPC is incorporated on similar lines and it recognizes right of an alien to sue and his liability to be sued, as if he is a citizen of India. Moreover, he said Rule 39 of the Writ Proceedings Rules, 1977 broadly adopt inter alia the provisions of CPC.

Agreeing, the High Court observed,

"If right to sue is recognized, whether it is prosecuted in an ordinary Civil Court or in Writ Court, in the fact matrix of the case, pales into insignificance. Where the cause of action is animated with abundant public law elements like the State action, writ jurisdiction is invocable. It cannot be said that the action of respondents does not have such elements, when the same has been taken under a special statute (IT Act). Therefore, contention of learned ASG that Indian law does not take cognizance of a foreign entity/company being too farfetched an argument, cannot be agreed to."

It also noted that though Twitter is a foreign entity, it did face action under Indian laws. "The Petitioner-Company is not only threatened of losing its protection available u/s 79(1) but also penal action for violation of the mandatory provisions of the Act and the Website Blocking Rules."

Additional Solicitor General R. Sankaranarayanan appearing for the government had argued that Twitter is a ‘foreign commercial entity’ and the same has neither been defined nor taken cognizance of by the Indian law.

However, Court noted noted Rule 8(1)(iii) of IT (Certifying Authorities) Rules, 2000 which defines “foreign company” by adopting the meaning assigned to it in section 2(23) of the Income Tax Act. Rule 8(3) of the Website Blocking Rules also mention about the mode of service of notice on a ‘foreign entity or body corporate’. It also recognizes the right of such an entity to reply.

Court also noted that Twitter's challenge was structured inter alia on the provisions of Article 14 of the Constitution. It cited several precedents to hold that a company, a juristic person, whether Indian or foreign, can maintain a legal action based on Article 14 of the Constitution of India.

"Admittedly, petitioner-company is an incorporated body. Therefore it cannot be disputed that it is entitled to protection under Article 14...Article 226 employs the term ‘any person’...Article 226 also employs the expression ‘for any other purpose’ and therefore, even a complaint not involving violation of Fundamental Rights may lie to the Writ Court."

Nevertheless, Court agreed with Centre so far as it contended that Twitter does not have a legal mandate to espouse the cause of twitter users/account holders. It held, "It [Twitter] cannot claim protection of Article 19(1)(a) because it is not a citizen, and Article 21 because it is not a natural person; it also cannot espouse the arguable cause of twitter account holders in the absence of enabling provision of law unlike trade unions espousing the cause of workmen under the provisions of The Trade Unions Act, 1926 & The Industrial Disputes Act, 1947."

As such the petition was held to be maintainable, but the prayers sought were refused citing Twitter's "culpable conduct" and even otherwise holding that the accounts so blocked by the government disseminated "outrageous" content.

"Many are treacherous & anti-national; many have abundant propensity to incite commission of cognizable offences relating to sovereignty & integrity of India, security of the State and public order. No reasonable person in the trade would agree with the contention of petitioner that, reasons for the impugned orders are lacking," Court said.

Case Title: X Corp v. Union of India & Anr.

Citation: 2023 LiveLaw (Kar) 244